Researcher Ishaq Jamal Maragha, a student in the Master’s Program in Commercial Law, has defended his thesis titled “The Law Applicable to the Electronic Arbitration Agreement.”
The present thesis dealt with the law applicable to the electronic arbitration agreement in light of the Palestinian Arbitration Law No. (3) of 2000. The research problem appears in the context of the Palestinian legislator’s lack of awareness. In addition, when enacting the arbitration law, the emergence of great technological development and the perception of the possibility of using technological means as part of the arbitration process at the perspective of procedures or subject.
The researcher concluded that electronic arbitration is only a form of traditional arbitration. However, it is distinguished by the fact that all its stages are carried out through electronic means of communication. In addition, the principle is supposed to be that the will of the parties is the basis for determining the law applicable to arbitration and its procedures. This willingness may be expressed explicitly, and the arbitrator can deduce it from the circumstances and terms of the contract. However, this will is not absolute. Moreover, in the absence of this will, the discretionary authority to determine the law applicable to the subject of the dispute belongs to the arbitrator, who may rely on national laws in determining the law. The arbitrator may otherwise resort to non-national legal rules such as electronic substantive law, and this authority is governed by certain controls.
The researcher recommended the necessity to amend the text of Article (19) of the Palestinian Arbitration Law, which dealt with international arbitration. The researcher believes that the aforementioned article should include evidence that it relies on the economic criterion in determining the internationality of arbitration in addition to the geographical criterion. In addition, the parties should be allowed to agree on national laws or legal principles to be applied to arbitration disputes that arise between them and not to be limited to national laws. We shall not mention the importance of adopting the idea of the law most closely related to the subject of the dispute or the appropriate legal rules when the arbitrator chooses the applicable law, whether to the subject matter or the procedures, in light of the fact that the Palestinian law still lacks Attribution rules in the absence of civil law.
The thesis was supervised by Dr. Tareq Kmail. The committee of examiners included Dr. Nour Hajaya and Dr. Ahmad Abu Zaina.